83 P. 75 | Cal. | 1907
Lead Opinion
Plaintiff Bechtel and one Lena B. Mattern each gave a mortgage to secure the debt of the latter. The mortgages were on separate pieces of property. Bechtel's mortgage was given as additional security for the Mattern debt. The mortgage declared that it was given "as security for the payment of one promissory note according to its terms," and declared further that if Lena Mattern shall fail to pay or cause to be paid any part of the debt secured when due, the whole debt secured shall, at the option of the mortgagee, or assigns, become due and collectible. A foreclosure was had of these mortgages. The decree and order of sale directed that the parcel of land mortgaged by Lena Mattern be first sold at public auction; that if the moneys arising from the sale of this property were not sufficient to satisfy the judgment, then, for any deficiency remaining, the parcel mortgaged by Bechtel be sold. The sheriff sold the property and issued to the purchaser his certificate of sale in due form. His return shows that he first offered the parcel mortgaged by Mattern for sale and received therefor no bid. He then offered the Bechtel property for sale and received therefor no bid. Thereupon he offered both parcels for sale in one lot and effected a sale for an amount sufficient to satisfy the judgment.
After the sale, which was on April 25, 1901, Bechtel leased his land so sold to the defendant in this action at the monthly rental of twenty dollars. Subsequently, upon defendant's refusal to pay rent, plaintiff brought his action in a justice's court for unlawful detainer. The answer pleaded by way of defense the sale of the land, and alleged that the defendant had paid the rent sued for to the purchaser, a fact uncontradicted. Defendant recovered judgment in the justice's court, plaintiff appealed to the superior court and there recovered judgment, from which this appeal is taken. In the superior court the certificate of sale offered by defendant was excluded upon the ground that the sale itself was void because made contrary to the directions of the decree. Upon the other legal questions involved the attorneys for plaintiff and defendant are in accord. The single proposition to be determined in the case is whether or not the sale was in fact void. If voidable merely, then, owing to the great lapse of time — some five years — and to the fact that this is but a collateral attack and not a direct proceeding to vacate the sale, it could not be overthrown in this action for mere irregularity. *445
Respondent's position may be thus stated: The terms of the decree ordering sale are controlling. By those terms the Mattern property was to be first sold, and the Bechtel property was to be sold only in the event of and to make good any deficiency which might exist after the sale of the Mattern property; that the right to sell the Bechtel property existed and arose only after the sale of the Mattern property, and the sale of the two parcels in gross was a violation of the terms of the decree, and therefore void.
1. Coming to the consideration of this proposition, it is to be remembered that a sale under execution or under foreclosure decree is void only if conducted in a manner prohibited by statute, or in a manner which would not have been in the power of the court in the first instance to have authorized. And in this regard it matters not whether the departure be from the statutory mode or from the directions of the decree. Thus it is said by this court in Humboldt Society v. March,
The question which thus arises is, could the court in its direction for sale have provided for the sale as here actually conducted, en masse, to meet the contingency which actually arose, — namely, that no bid was obtained for either of the parcels when separately offered? We entertain no doubt that it could. The powers of a court of equity, dealing with the subject-matters within its jurisdiction, are not cribbed or confined by the rigid rules of law. From the very nature of equity, a wide play is left to the conscience of the chancellor in formulating his decrees, that justice may be effectually carried out. It is of the very essence of equity that its powers should be so broad as to be capable of dealing with novel conditions. (Southern Pacific Co. v. Robinson,
2. We have so far considered the question of the sale to the extent of determining that, at the worst, it was not void, but voidable merely, and that respondent's remedy was by direct proceedings within a seasonable time to vacate the sale, *448
proceedings which were never taken. But equally demonstrable is the proposition that, in the absence of fraud and injury shown, the sale en masse of the two parcels of land, under the circumstances indicated by the sheriff's return, was not even irregular, but was a perfectly valid exercise of power. Marston
v. White,
Nor can it matter, as argued by respondent, that the effect of such sale is to impose the whole burden of the debt upon his land, and at the same time to force him in redeeming to redeem also the land of the principal debtor. By his contract he imposed the burden of the whole debt upon his land, if, for any reason, the security of the principal debtor should fail. He is entitled to be subrogated to all the rights and remedies of the judgment creditor, and this is all he may justly ask. (Civ. Code, sec.
With this view we are in full accord, and upon both of the grounds above mentioned the judgment must be reversed and the cause remanded.
Angellotti, J., Lorigan, J., and McFarland, J., concurred.
Concurrence Opinion
I concur in the judgment upon the grounds stated in part one of the foregoing opinion. As to the second ground, it appears that the appellant was a surety only, and the provision of the decree requiring a separate sale was for his benefit. I am not prepared to say that he should not have the irregular sale set aside in a direct proceeding for that purpose.
Beatty, C.J., dissented.
Rehearing denied.